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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Buydov v Entry Clearance Officer, Moscow [2012] EWCA Civ 1739 (20 December 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/1739.html Cite as: [2012] EWCA Civ 1739 |
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ON APPEAL FROM THE UPPER TRIBUNAL ASYLUM
AND IMMIGRATION CHAMBER
OA/04126/2010
Strand, London. WC2A 2LL |
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B e f o r e :
and
MR JUSTICE DAVID RICHARDS Between:
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Alexey Pallovich Buydov |
Appellant |
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- and - |
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Entry Clearance Officer, Moscow |
Respondent |
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Matthew Barnes (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Wednesday 5th December 2012
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Crown Copyright ©
Lord Justice Hughes:
"the guardianship over the Son till his becoming of age as well as sole responsibility for his upbringing, education, including the right of making important decisions about his life, education, defining place of residence, travel etc."
Father was said to retain his right to contact as he wished, "providing that he did not interfere with the decision making" mentioned, Mother agreed to place no barriers in the way of contact not less than three times per year, and Father agreed to pay maintenance for as long as the appellant was in full time education, including university education. The divorce decree duly records that there is no disagreement over property distribution or the guardianship of the child, as it also records that the parent residing separately from the child has both the right and obligation to "participate in bringing up the child" whilst the parent residing with the child has no right to prevent it. In due course, the Immigration Judge concluded that the agreement was approved by the Russian court and would no doubt be enforced by it if it were in dispute. The judge also adverted to the similarity of its wording to the terms of the UK immigration requirements and concluded, contrary to Mother's evidence, that it was "not unlikely" that one purpose, at least, of this agreement was to facilitate the appellant's application for settlement.
Tribunal re-determined the appeal, using the facts found by the Immigration Judge, supplemented by a little additional material. It too concluded that the appellant had not shown that his mother had had sole responsibility for his upbringing, because Father retained some responsibility for it. It is thus that the second appeal from that determination comes before us.
The Immigration Rules
"301. The requirements to be met by a person seeking limited leave to enter or remain in the United Kingdom with a view to settlement as the child of a parent or parents given limited leave to enter or remain in the United Kingdom with a view to settlement are that he:
(i) is seeking leave.. ..to join or remain with a parent or parents in one of the following circumstances:
(a) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and the other parent is being or had been given limited leave to enter or remain in the United Kingdom with a view to settlement; or
(b) one parent is being or had been given limited leave to enter or remain in the United Kingdom with a view to settlement and has had sole responsibility for the child's upbringing; or
(c) one parent is being or has been given limited leave to enter or remain in the United Kingdom with a view to settlement and there are serious and compelling family or other considerations which make the exclusion of the child undesirable and suitable arrangements have been made for the child's care;...."
There are then further conditions which must be met, which do not need to be set out in full since there is no doubt that the appellant could meet them. The applicant child must be under 18, unmarried and not leading an independent life, and he must be going to be accommodated and maintained by the parent(s) without recourse to public funds.
"...the issue of sole responsibility for the child's upbringing is not to be decided only between the child's parents. There may be cases where the conclusion is that there has been a sharing of responsibility between the parent who is settled here and some other relative, or other person possibly, in the country where the child has been left when the parent came here.
The second point which is also established is that the words "sole responsibility" have to carry some form of qualification in that the rule envisages that a parent who is settled in the United Kingdom will or may have had the sole responsibility for the child's upbringing in another country. Obviously there
are matters of day to day decision in the upbringing of a child which are bound to be decided on the spot by whoever is looking after the child in the absence of the parent settled here, such as getting the child to school safely and on time, or putting the child to bed, or seeing what it has for breakfast or that it cleans its teeth or has enough clothing and so forth....the question must be a broad question.
...the decision that has to be made is the decision of the adjudicator. It is not for this court to make its own fresh decision of fact on the evidence as it appears from the papers... Each case must depend on its own facts considered broadly.
Direction and control of upbringing are... factors which are part of the total pattern of fact on which the adjudicator had to make his decision. Another matter was of course the extent of contact that the mother had had with the child since the mother went to the United Kingdom..."
"While legal responsibility under the appropriate legal system will be a relevant consideration, it will not be a conclusive one.
One must also look at what has actually been done in relation to the child's upbringing by whom and whether it has been done under the direction of the parent settled here."
"I would respectfully adopt the observation that the question is a factual one. Each case will depend on its own particular facts. The general guidance is to look at whether what has been done in relation to the upbringing has been done under the direction of the sponsoring settled parent."
And at [26] he concluded:
"At the end of the day this was a question of fact and judgment for the adjudicator, who took a lot of trouble over this case. He was concerned about it, as anyone would be, because of the position of the mother and her history. But he made no error of law...and there was therefore no ground on which he should have been reversed by the Immigration Appeal Tribunal and no ground upon which this court can interfere."
It is interesting to observe that in that case the submission rejected was in effect the reverse of the argument advanced in the present appeal; it was that too much emphasis had been placed on the incidence of day to day control.
"(iv) Wherever the parents are, if both parents are involved in the upbringing of the child, it will be exceptional that one of them will have sole responsibility."
The IAT clearly did not mean to impose a legal test. Its review of the cases is predicated on the fundamental proposition that the issue of sole responsibility is one of fact. It was doing no more than identifying where the necessary factual enquiry is likely in most two-parent cases to lead, and as such the proposition is accurate. The application of the factual test to two-parent cases is well illustrated by some of the decisions reviewed in TD. In SSHD v Pusey [1972] Imm AR 240, discussed at [35], the sponsoring parent in the UK was Father, and the child had lived for twelve years with her grandmother and mother in the country of origin. Although Father shouldered the main responsibility, the close contact of mother meant that he did not have sole responsibility. Eugene v ECO Bridgetown [1975] Imm AR 111, discussed at [36] was a similar case, as were Martin v SSHD [1972] Imm AR 71, discussed at [11], ECO, Accra v Otou-Acheampong [2002] UKIAT 06687, discussed at [37] and R (Philippines) v SSHD [2003] UKIAT 00109, discussed at [38]. On the other side of the factual dividing line was Alagon v ECO, Manila [1993] Imm AR 336, discussed at [39]. There the parent remaining in the country of origin, although he occupied the same house as the child, which belonged to the sponsoring mother, was divorced from Mother, made no financial contribution and took no part in the child's life. Mother was held to have had sole responsibility. That illustrates the factual nature of the enquiry and the proposition that even where there is a second parent in close physical proximity to the child, s/he may not be taking any responsibility for him.
This appeal
i) it failed to give any weight to the terms of the published guidance contained in the Secretary of State's Immigration Directorate Instructions ("IDIs");
ii) it essentially concluded that a parent could only demonstrate sole responsibility if the other parent is entirely excluded from the life of the child;
and
iii) it failed to come to any conclusion about the correct interpretation of the expression 'sole responsibility'.
It is convenient to focus first on the second submission. This formed the heart of Miss Ward's argument. With it she coupled the submission that, although there might be unusual cases where it is not so, the primary carer and home-provider of a child should usually be regarded as having sole responsibility.
"...in the light of the Immigration Judge's findings of fact....the appellant is unable to establish that his mother had sole responsibility for him.. .notwithstanding that almost immediately prior to the application he was living in the UK with his mother and stepfather and had been for some significant time."
The reasoning behind that conclusion is expanded at [31] as follows:
"[The Immigration Judge]...found that the appellant's father played a more significant role (than had been suggested) in approving the choice of school for the appellant. He found that the appellant's father maintained a genuine and active interest in his education. He also found that there is a degree of consultation with the appellant's father. He found in effect that the appellant's mother and father discuss the appellant. He found that the evidence does not show that the appellant's father has little or no interest in his son. Crucially....he states that "I am not persuaded on the evidence that the appellant's father does not, despite the wording of his agreement with the appellant's mother, retain some responsibility in practice for the appellant's upbringing. It seems to me that he continues to play a fairly important part in the appellants' life." He found...that part of the appellant's supportive family network in Russia includes his father."
i) at 4.1: "A parent claiming to have had 'sole responsibility' for a child must satisfactorily demonstrate that he has, usually for a substantial period of time, been the chief person exercising parental responsibility it must be shown that he has had, and still has, the ultimate responsibility for the major decisions relating to the child's upbringing and provides the child with the majority of the financial and emotional support he requires. It must also be shown that he continues to have care and control of the child..." (emphasis supplied).
ii) at 4.4: "A residence order (or an existing custody order) should normally be accepted as evidence that the sole responsibility requirement of the rules is met, provided that it gives responsibility for the child to the parent who is settled here or being admitted for settlement.
Mr Justice David Richards:
Lord Justice Ward: